Main Navigation

John: I have on my desk a nearly final draft of the Software Freedom Law Center‘s new “Legal Issues Primer for Open Source and Free Software Projects”. The final draft will apparently be made public very shortly, and I think it should answer a lot of your questions. One of the lawyers at the event, in partnership with a major tech publisher, will also be publishing an ‘IP for hackers’-type book in the near future as well.

I will note that the main difference in the particular question you ask (why you can wait to file a patent suit, but not a trademark suit) stems from the different goals of patent and trademark. Trademark’s goal is to be useful to consumers; if a bad trademark is out there, it is believed to harm/confuse all consumers, and must be pursued. Patent’s goal is (primarily) to incentivize inventors, so if inventors want to not pursue violators, that is their call. This is not a complete picture- there are a number of wrinkles on each side- but that is why you get the defaults you do.

Wonderful how much ambiguity can exist even in that simple statement. I’m of the opinion that the goal was to create an incentive for the inventors to reveal their ideas so they would, in due course, flow into the commons. Others feel that the goal was to create an incentive to invent [as if that was something you needed :)]. Yet others seem to feel the goal was to reward the inventors for doing the post invention work of commercializing. Etc. etc.

patrick – there is a long and venerable tradition of in waiting for the best moment to exercise the option the patent grants. The network mutually assured destruction patents that major industries players hold over each other depend on it.

Ben: I did oversimplify. Strictly speaking, the goal is to ‘promote the progress of the useful arts’; the one and only prescribed mechanism for that, however, is ‘by securing … to … inventors the exclusive right to their discoveries.’ No matter how you slice and dice the details (how is the public-private balance struck, how much disclosure is necessary, etc.), there is a starting assumption that during the term of the patent the patent holder is king-like.